August 19, 2003

Update II: Massachusetts Governor Mitt Romney announced through a press release today that he would sign supplemental budget legislation to assure that assigned counsel are paid for work performed in Fiscal Year 2003. Romney said that the prospect of state criminal court sessions grinding to a halt is a public safety issue and he expected assigned counsel to “get back to work immediately to assure the administration of justice.”

In response to Romney’s promise, Suffolk Lawyers for Justice, which called for the boycott of new cases last Thursday, announced it would begin assigning lawyers to cases in Suffolk County criminal matters; that it was “pleased with the prompt action taken by both the Legislature and the Governnor;” and that “it took tremendous courage on the part of individual attorneys to decline cases and take a stand on an issue that is crucial to the adequate representation of the indigent.”

The Boston Herald online, posted an Associated Press dispatch this afternoon, stating that “The 335-member Suffolk group ended its day-and-a-half protest at 2 p.m. after Romney said the $15.4 million would not be vetoed from the bill when he signs it.”

Your Editor is pleased that further damage to the judicial process is avoided. Howerver, the coercive tactics used by the Bay State bar advocates were unjustified and unethical, and took far less courage when done as part of a conspiracy than if each lawyer had indeed made an individual decision. Let’s hope that this quick success does not motivate the assigned counsel to try another group boycott — or implicit threat of such — to get its primary goal of significantly raised fees. Raising the fees is a worthwhile goal, but the means used by officers of the court need to be lawful and ethical from now on.

When does a zealous defense tactic become excessive? SW Virginia Law Blogseems to have found a good example today, pointing to a story in the Coalfield Progress. Coalfield.com, “Two women charged in interview with alleged rape victim,” by O’Donna Ramsey, 08-19-03).

Blawgger Steve Minor explains that obstruction of justice charges were brought “against two Wise County women for organizing a meeting between an alleged rape victim and the counsel for the defendant, who was married to one of the two women.” The under-aged, mentally disabled victim was interviewed at the home of the accused. The Coalfield article says the 16-year-old victim functions at the level of a 7 or 8 year-old.

The accused’s lawyer, Stephanie Pease, did not ask the victim’s mother for permission to interview the victim. According to a police representative, such permission is needed to interview a minor. The local prosecutor is apparently considering whether to press charges against Ms. Pease.

According to the article, “On Monday, Pease said she did nothing wrong in interviewing the alleged rape victim without getting permission from the girl’s mother. ‘I do not believe I did anything illegal or unethical,’ she said.” The article continues (emphasis added):

Pease said she believes she did not need permission from the girl’s mother since the interview was initiated at the girl’s request.

When asked about Dotson’s comments concerning potential charges, Pease responded, “I’d like to see him try to interfere with my duty to defend my client.” Pease said she has an ethical obligation to her client to defend him, and she believes she did nothing wrong. The attorney said she is angry Dotson would even suggest charges, or that there was impropriety on her part.

On July 7, 2003, we did a posting here about changes to the lawyer ethics rules that have taken effect in Arizona, replacing the concept of “zealous representation” with “honorable representation.” The Coalfield article suggests that the Arizona message needs to reach that corner of Virginia.

Update I: The Boston Globe reported this morning on the disruption caused by yesterday’s boycott in Boston courts. For some reason, the Globe continues to call this refusal to take cases a “strike” rather than a group boycott by competitors. It has failed to raise the antitrust issues presented by the boycott — despite, for example, the efforts of ethicalEsq? to bring the issue to the attention of the Globe editors and staff. (“Lawmakers OK back pay after lawyers refuse clients,” by Kathleen Burge and Rick Klein, Globe Staff, 8/19/2003.)

The article states, per Governor Mitt Romney’s Press Secretary, that the Governor is expected to sign the measure after his office reviews it. (The lawyers vow to refuse cases until the legislation is signed.) The Globe notes that, “House Judiciary Committee chairman Eugene L. O’Flaherty said the lawyers were never in danger of not being paid. The books aren’t formally closed on fiscal year 2003 until September. Every year, the Legislature addresses unpaid bills from the previous fiscal year.” (emphasis added)

Editor’s Note: It has been clear all along that the issue here was when rather than if the bar advocates would be paid. Rather than individually deciding, in effect, whether to continue to take cases while extending further credit to the State, the group refusal to accept new cases until payment is a coercive attempt to force immediate payment by the State — a group refusal to extend further credit to the State, backed up by a refusal to deal with the Buyer until it complies. This is a classic, naked restraint of trade under the antitrust law.

To help avert disaster, according to the Globe, “Brad Greenberg, a Brockton lawyer, filled in for the absent defense lawyers in at least five cases in Dorchester District Court.” Greenberg said:

”I care very much how much they get paid. But I also have a responsibility as an officer of the court to help with the administration of justice.”

However, the article explains that “lawyers who were on strike lambasted Greenberg for undercutting their efforts” (emphasis added):

”He’s not trained to do this kind of work,” said lawyer Anthony R. Ellison, as he stood outside on the steps of the courthouse. ”He’s acting as a scab. I want him to explain to my kids why their daddy is not getting paid.”

Sadly, rather than insisting that the boycotting lawyers end their unlawful activity and stop pressuring lawyers willing to take cases, affected judges voiced sympathy and frustration. One even felt the pain of the boycotting bar advocates:

”I think the lawyers are finding this very painful,” Judge Edward Redd said as he sat in his chambers at the Roxbury courthouse with Judges Milton Wright and Paul Leary. ”I think it’s analogous to doctors not being able to help somebody in need.”

This editor is wiping the tears from his eyes as he types this final paragraph. Rather than face a few additional weeks of delay in receiving full pay (a risk every assigned lawyer across the nation faces), the boycotters have disrupted the courts, ignored their ethical duties, and flouted antitrust law. They should explain that to their children.

P.S. The Boston Herald, also covered the boycott today, with an article headlined “Public defense lawyers strike” (Aug. 19, 2003, by David Weber). The Herald states that “The tactic seemed to work,” but noted

“The budget bill, however, does not include a rate hike for the lawyers, which they have been seeking for years. Private attorneys can get from $125 per hour to $600 per hour for a criminal case.”

In addition, the Herald‘s opinion page displayed a well-phrased editorial captioned “A Double Standard on Fees and Bills,” which begins with the sentence, “Ah, here’s to the power of a well-timer hissy-fit,” and which goes on to decry the unfairly low fees received by assigned counsel, and notes:

By contrast when the state Department of Housing and Community Development goes out and hires outside private counsel, such as Palmer & Dodge, it pays from $267 to $437 an hour, according to a recent article in Massachusetts Lawyers Weekly.

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Less than a day after The Boston Globe described the frustration and angst that is rampant among members of the legal profession [as reported yesterday in our posting, 8/18/03], the Law.Com Newswirereports that “The nation’s law schools are getting crowded. Admissions jumped 9 percent for this year’s class, while applications climbed 17 percent, according to data from the Law School Admissions Council cited by the Providence Business News.” (PBN.com, “Local Law Schools face record application levels,” by David Ortiz, August 19, 2003) [How Appealing also points to a similar article this morning in the Orlando Sentinel headlined “Law School’s Hot,” 8/19/03) e (Aug. 19, 2003) in the Orlando Sentinel, saying that “Law

The high attraction could likely be attributed to a bad economy, the recent spate of corporate scandals and a surging interest in the profession by a generation weaned on law-related TV shows.

Apparently, children of baby boomers (you remember Boomers, the idealistic ones who were going to make the world a better place and raise a new generation to carry the torch) are going to law school because:

the economy is down — which, I guess, makes law school again the academic default choice, holding pattern, or Lotto Ticket;

they prefer law over business school, because, in the words of Robert Ward, dean of Southern New England School of Law, that “one can run a business with a law degree, but you’re also a lawyer so you’re less likely to go to jail.” And,

they have a less negative view of lawyers and the profession than prior generations — due, in part, to having been “socialized on very legally oriented television shows, in a massive way, . . . ‘Law and Order,’ ‘The Practice,’ ‘Ally McBeal.’”

Is this good news for consumers of legal services? Are these the fertile grounds from which legal ethics will be revitalized and the consumer will rise to be sovereign in the legal marketplace? Some might argue that a greater glut of lawyers will increase the chances that competition will bring down fees and expand choices to consumers. Historically, however, increasing the supply of lawyers has never seemed to bring Americans the benefits of greater competition.

More likely, a guild that can’t limit the supply of its members will struggle to increase the demand for their services and to block nonmembers (nonlawyers) from the marketplace. Expect further efforts, therefore, to stifle the Self-Help Law movement and to expand the definition of Unauthorized Practice of Law. And, expect that ethicalEsq? and mental health practitioners will be busier than ever.

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